Supreme Court Slaps Down Fifth Circuit. Again. This Time It's Their First Amendment Jurisprudence Under Fire.
Yes, this means James Ho was correct.
I wonder if the Fifth Circuit is getting tired of being reversed by the Supreme Court. Like, do we think they’re really angry SCOTUS has to remind them about major legal concepts like, you know, standing. Or are they just content to move the jurisprudential Overton window to the right, knowing that over the long term they’re winning?
Anyway, today, in a curious per curium decision, the Supreme Court overturned the Fifth Circuit in Gonzalez v. Trevino.
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Concurrences were written by Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson (Sonia Sotomayor joined this concurrence). Clarence Thomas dissented. The majority opinion is indeed short, but surprisingly brutal (for a per curiam opinion), criticizing the Fifth Circuit for an “overly cramped view” of precedent.
The facts of the case are truly outrageous. The plaintiff is Sylvia Gonzalez, a city council member in Castle Hills, Texas. She organized a nonbinding citizen petition seeking to replace the city manager. Unfortunately for Gonzalez, the city manager was a political ally of mayor Edward Trevino. When Gonzalez briefly and accidentally placed the petition in her binder after a hearing about the city manager she was arrested for violating a Texas law that bars anyone from “conceal[ing]” any “government record.” Though the charges were eventually dropped, Gonzalez sued Castle Hills officials involved in her arrest alleging retaliation for her exercise of her First Amendment rights.
The Fifth Circuit held Gonzalez failed to prove “similarly situated individuals” engaged in the same “criminal conduct” without getting arrested. Judge James Ho wrote a salty dissent that castigated the most conservative federal appellate court for leaving Americans “vulnerable to public officials who choose to weaponize criminal statutes against citizens whose political views they disfavor.”
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But the Court has remanded the case:
“That court thought Gonzalez had to provide very specific comparator evidence—that is, examples of identifiable people who ‘mishandled a government petition’ in the same way Gonzalez did but were not arrested. Although the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.”
Giving Gonzalez another chance to be vindicated in court.
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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
